Appeal No. 1998-0510
Application 08/742,519
"Applicants submit that not only is the Hickinbotham reference
non-analogous art, but that the structure and its intended
function are so different from the structure set forth in
pending Claim 1 that no person skilled in the art, in the
absence of hindsight, would have found any teaching,
suggestion or invention in the art to have used the
Hickinbotham structure in the manner advanced by the
Examiner." (Br5.)
The Examiner does not respond to the merits of the
non-analogous art argument. The Examiner merely restates the
test for analogous prior art and restates the rejection
(EA6-7).
We find that Hickinbotham is not within the scope of the
prior art. It is neither within Appellants' field of endeavor
(making cable splices) nor reasonably related to the problem
faced by Appellants (preventing the mess from exiting
encapsulant while allowing observing of the encapsulant).
However, assuming, arguendo, that Hickinbotham is within the
scope of the prior art, we fail to see how it would have
suggested the claimed subject matter. We agree with
Appellants that the function of the bag in Hickinbotham is so
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